KARAKORAM INTERNATIONAL UNIVERSITY through Vice-Chancellor Versus NUMAN BUTT
ORDER
1. MUHAMMAD NAWAZ ABBASI, C.J .---This petition has been directed against the judgment dated 18-3-2009 passed by Chief Court in a writ petition preferred by Mr. Numan Butt respondent herein being aggrieved of the result of final selection made by the Selection Board KIU for the post of Lecturer.
2. The grievance of the respondent was that he having obtained 182.67 marks out of 300 marks in written test secured highest position but the Selection Board subsequent to the written test and viva changed the criteria of selection adverse to his interest in consequence to which he was excluded from the final list of successful candidates.
3. The Chief Court having discussed the matter in detail in the light of the facts pleaded by the parties and documentary evidence brought on record allowed the writ petition, vide impugned judgment. The operative Paras No.5 to 7 of the judgment under challenged are reproduced hereunder:-
(5) The respondents Nos.1 and 2 in their reply/comments have admitted Paras 1 to 4 and 6 of the petition in toto and Para No.5 partly. In Para No.6 of the petition. Petitioner has alleged to be top of the merit list securing marks 182/300 and this fact has been admitted in their reply by respondents Nos. 1 and 2 in the meanwhile, respondents Nos. 1 and 2 have submitted certain documents with their comments/reply including the result sheet and according to the merit list petitioner has been placed at serial No2 of merit list. His total marks have been shown 171/300 with a percentage of 57. On viva voce he has obtained 45 marks and has been marked as "Rejected:
4. (6b) The learned counsel appearing for and the representative of the respondents/departments have very frankly admitted before us that the result was modified and petitioner is having top merit among the candidates for the appointment in the faculty, but has been rejected on the basis of previously prepared result i.e. 171/300 with 2nd position. Thus it is very much clear that the respondents 1 and 2 have taken into count the marks of the petitioner 171/300 instead of 182/300 and second position instead of 1st position of merit list.
(7) Finding the result prepared and rejecting the petitioner on the basis of less marks position is misconceived which is against the basic right of the petitioner. We allow the petition and direct the respondents Nos.1 and 2 to appoint the petitioner against the post applied for within 15 days after this judgment. File.
5. The learned counsel for the petitioner submitted that neither the result nor criteria of selection was changed rather respondent having not been able to clear the presentation test to the satisfaction of Board was not selected as the final selection was subject to the clearance of presentation test and aggregate marks of written and presentation test. The learned counsel added that undoubtedly the respondent having obtained 182.67 marks out of 300 marks in the written test secured highest position but in the presentation test he could secure only 213 sparks out of 500 marks, whereas 50% maximum marks were required to clear this test. The learned counsel placing reliance on the final result sheet prepared by the Selection Board. (Photocopy is mark `A') submitted that total marks of last selectee (Sajjad Haider) were 412 out of 800 marks whereas the respondent could get only 395 marks and with reference to the comments submitted in Writ Petition on behalf of KIU contended that University unambiguously pleaded before the Chief Court that Mr. Numan Butt could not clear presentation test to the satisfaction of the majority of members of Selection Board therefore, was not selected.
6. Learned counsel argued that Selection was not to be made on the basis of result in written test rather the overall performance was the criteria of selection and the suitability of a candidate for the post was to be judged by the Selection Board in presentation test on the basis of opinion of majority of members and thus the interference of Chief Court in the matter would amount to substitute the opinion of Selection Board which was not the function of court.
7. The learned counsel for the respondent on the other hand producing a copy of minutes of meeting (Mark B) of Selection Board held on 15 to 17 Feb, 2008 at KIU Liaison Office Islamabad contended that as per decision of Board, the marks were not to be awarded to interview/viva, rather the selection was to be made on the basis of consensus of the Selection Board to judge the suitability of candidates 00 the basis of result of written test as the presentation test, was just a formality for the purpose of general assessment and introduction of the candidates. The learned counsel contended that it is evident on record that criteria of 500 marks with 50% pass marks in presentation test was introduced subsequent to the written test and interview and consequently the selection on the basis of marks in presentation test would not be fair and justified. The learned Counsel submitted that in any case the fact relating to the award of 500 marks for presentation test and 50% minimum pass marks was not brought on record before the Chief Court either in the comments to the writ petition or orally at any subsequent stage, rather the University in general terms pleaded that performance of respondent in presentation test was not satisfactory. In net-shell the contention of learned counsel is that University by introducing the above criteria of selection before this Court for the first time has set up a new case and impliedly has conceded factual position pleaded by the parties before the Chief Court. The learned Counsel argued that this is settled law that a fact which was not brought on record before the Court of first instance cannot be allowed to be plead at a subsequent stage, without the permission of Court and consequently finding of the Chief Court on the question of fact cannot be interfered on the basis of new facts brought by KIU on record before this Court, and that the verdict given by the Chief Court is not suffering from any legal or factual infirmity to call for interference of this Court.
8. We, having heard the learned Counsel for the parties at length, have considered their respective contentions in the light of legal and factual position of the case.
9. The careful examination of record would show that KIU in the written comments submitted to the Writ petition has not taken the plea that 500 marks were awarded to presentation test with 50% minimum pass marks and selection was to be made on the basis of aggregate marks, rather this criteria of selection has been introduced for the first time before this Court. The University simply pleaded before Chief Court in general terms that performance of respondent in presentation test was not satisfactory.
10. In the facts and circumstances of the case the pivotal question requiring determination would relate to the criteria and method of selection, which is certainly a pure question of fact to be decided on the basis of evidence brought in writ petition before the Chief Court and this is settled proposition of law that a fact which was not brought before the Court of first instance, cannot be allowed to make part of record before the next forum or the final Court. This not denied that respondent secured highest position in written test and selection was certainly to be made on the basis of merits, but the controversy regarding method of selection in the light of factual position brought on record before the Chief Court would give rise to a strong presumption that allocation of 500 marks to presentation test and requirement of 50% minimum marks to clear this test was introduced subsequently for the purpose of final selection and consequently the contention of learned counsel for the respondent that by reason of change of criteria, respondent who secured highest position in written test was caused serious prejudice in the matter of selection was not without substance. This is also not understandable that for what reason the criteria of selection on the basis of marks in presentation test and aggregate marks was not relied upon by the University before the Chief Court.
11. Be that as it may, the Chief Court in the light of material before it having elaborately dealt with the controversial question of facts and considering the merits of respondent in written test gave verdict in his favour, learned counsel for the petitioner has not been able to point out any misreading or non-reading of the evidence by the Chief Court or any error of law in the impugned judgment. This is settled principle of law that findings of fact cannot be interfered with even if it is erroneous or is based on misappropriation of evidence and this is also settled law that legality of the judgment cannot be challenged before the Higher Court on the basis of facts which were not available on record before the Lower Court and in the light thereof this Court may not entertain and dilute upon the new facts and pleas not raised before the Chief Court.
12. In the light of foregoing discussion, we having not been able to find out any legal or factual infirmity in the judgment of the Chief Court, would take no exception, to it and dismiss this petition.
13. M.H./21/Glt. Petition dismissed.